Assisted by Jason Vo

The Fair Work Commission (FWC) has recently found that a truck driver was unfairly dismissed and entitled to compensation in the case of Kyle Ogden v Prestia Holdings Pty Ltd [2022] FWC 2234.

The facts of the case

• The Applicant, Mr Kyle Ogden, was employed by the Respondent, Prestia Holdings Pty Ltd (Prestia), as a licenced heavy vehicle dangerous goods driver from December 2020 until his employment was terminated in February 2022.
• Prestia’s principal, Mr Prestia, died suddenly on 18 January 2022 and his wife, Ms Prestia, was required to take over the business.
• On 7 February 2022, Mr Ogden texted his supervisor, Mr Gunston, to inform him that he had received a driving infringement notice outside of work hours for using a mobile phone while driving.
• Mr Ogden was stood down on pay immediately and on the following day was given a show cause notice, which is a written request that the employee respond to allegations which may result in disciplinary action, with the three allegations raised being that:
• he breached fatigue management laws by driving longer than 12 hours in an 18-hour shift on 18 January 2022;
• he started work an hour late on the same day; and
• received an infringement notice for using a mobile phone while driving.
• Mr Ogden’s employment was then terminated.
• Mr Ogden then made an unfair dismissal application to the FWC under section 394 of the Fair Work Act 2009 (Cth).

The dispute

The central dispute between the parties was whether Prestia tolerated or encouraged contraventions of fatigue management laws, and whether doing so made Mr Ogden’s dismissal unfair.

The applicant’s submission

Mr Ogden contended that Prestia had done so by directing him to perform jobs that required him to drive longer than 12 hours in a shift on a regular basis.

The Fair Work Commission’s decision

Despite finding that wilful breaches of fatigue management laws by a driver would be a valid reason for dismissal, and Mr Ogden had obligations to make sure that he complied with those laws, the FWC found that the termination was harsh, unjust or unreasonable.

The FWC held that the termination was an unfair dismissal because Prestia:

• instructed Mr Ogden when his employment commenced that he would lose his job if he did not perform additional work as directed;
• directed Mr Ogden to work excess hours on 18 January 2022 and so its termination on that ground was not a valid reason for dismissal;
• was entitled to change its approach to fatigue management requirements, that is, its alleged adoption of a strict approach toward compliance, but did not notify Mr Ogden of this change; and
• ultimately had a history of tolerating and encouraging Mr Ogden to perform his work in a manner that would breach fatigue management laws.

Compensation

Since Prestia made all of its drivers redundant by 30 June 2022 and there was no prospect of the reinstatement of Mr Ogden’s employment, the FWC ordered Prestia to compensate Mr Ogden as provided for by section 390(1) of the Fair Work Act 2009.

The FWC ordered Prestia to pay Mr Ogden $15,645 (less taxation, and plus superannuation) to compensate him for three weeks of his average weekly wage which he would have otherwise received if his employment had continued until he had been made redundant with the other drivers, and four weeks of severance pay.

Key takeaways

Employers are entitled to (and should) direct employees to comply with the laws governing their work, particularly work health and safety laws. Employers that not only know that their employees are breaching work health and safety laws, but also direct employees to work in a manner which would result in the breach of laws may be liable for fines and penalties.

Incoming managers are entitled to change their approach to compliance with work health and safety laws to one which is stricter, but they should notify their employees of this change in their expectations and instructions.

In this case, Prestia’s failure to notify Mr Ogden of the change in its expectations and instructions meant that it could not dismiss Mr Ogden for conduct which it had a history of not only knowing and tolerating, but also encouraging him to do so by threatening dismissal.

If you have any questions regarding this article, require assistance with making or responding to an unfair dismissal application, or your own employment law matter, please do not hesitate to contact a member of Coleman Greig’s Employment Law Team, who will be more than happy to assist you.

Coleman Greig Lawyers provides this material as general information only in summary form on legal topics current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.